“A Badge Does Not Confer Credibility”: Bias Can Strain An Already Difficult Standard In Prosecuting Police
Average people find it difficult to place themselves in the shoes of police officers who live everyday knowing their next call could be their last. So when faced with a shooting by a police officer in questionable circumstances, they give deference to the officer’s decisions.
Jurors usually find that such officers reasonably believed the slain person posed a threat of serious bodily harm or death, justifying deadly force under legal standards.
Prosecutors are keenly aware of this tendency and know they will have difficulty prosecuting such cases. It would be hard, however, to create an alternative legal standard that could better ensure both an officer’s right to safety and the individual’s right to be free from excessive force.
Many minority citizens fear that jurors’ racial biases expand the notion of when it is reasonable for an officer to use deadly force. Indeed, one of the first questions many commentators asked when the decision was announced in the Michael Brown shooting was whether the grand jurors who declined to indict Darren Wilson, the officer who shot him to death, were split along racial lines.
Perceptions of racial bias undermine the legitimacy of the criminal justice system, splitting citizens along racial lines when a white police officer kills an unarmed racial minority.
While we cannot eliminate the possibility for bias in prosecutions, we can make the process more transparent. Local prosecutors should not be faced with the choice of bringing charges against members of the police departments they rely on every day. These cases should automatically be referred to the state attorney general’s office or a special prosecutor who does not have the same perceived conflict of interest.
Jurors should be given clear instructions that an officer’s testimony carries the same weight as that of any other witness and that a badge does not confer credibility.
Criminal prosecutions, however, are not the most effective way to address systemic problems in a department because they focus solely on the actions of an individual officer and not on the organizational culture that likely shaped that conduct. To force broader changes in police practices, advocates should focus on institutional factors that encourage police misconduct, such as the failure to identify, supervise and discipline officers who are prone to misconduct.
By: Kami Chavis Simmons, Former Federal Prosecutor, Professor and Director of the Criminal Justice Program at Wake Forest University School of Law; Room for Debate, The New York Times, November 25, 2014
“The Battle Of The Oil Barons”: Like Kids Playing With Gasoline In A Burning Schoolyard
It’s a very exciting time in the world of oil geopolitics, if you’re a fan of juvenile saber-rattling in the service of making billionaires even richer:
The fracking boom has driven US output to the highest in three decades, contributing to a global surplus that Venezuela has estimated at 2 million barrels a day. That’s equal to or more than the production of six OPEC members…
Conventional oil producers in OPEC can no longer dictate prices, United Arab Emirates Energy Minister Suhail Al-Mazrouei said in an interview in Vienna this week. Newcomers to the market who have the highest costs and created the glut should be the ones to determine the price, he said.
“That is what OPEC is hoping for,” said Carsten Fritsch, a commodity analyst at Commerzbank in Frankfurt. “It’s the question of who will blink first.”
OPEC will feel pressure too, with prices now below the level needed by nine member states to balance their budgets.
The United States has been making it a matter of public policy to poison its own groundwater and stress its fault lines by fracking, steaming and acidizing for oil. This is partly in order to enrich its own oil magnates, and partly to stick its thumb in the eye of Russia, Venezuela and OPEC. The Hillary Clinton-led state department has only been too happy to strongly encourage shale gas fracking in Europe in order to frustrate Russian ambitions as well.
So OPEC has been flooding the world with cheap oil partly out of revenge, partly in a regional power play against Iran and others, and partly to disincentivize Western fracking by making it economically unfeasible.
It’s all good fun, and I’m sure the players feel like they’re doing great work to advance the interests of their “good people” against all those other “bad people” in those nasty other countries.
Of course, what almost no one is paying attention to in the middle of all this is the impact on climate change and the planet. We now know beyond a doubt that if all of this new shale oil comes out of the ground and gets burned into the atmosphere as CO2, the world’s youngest inhabitants may not have many habitable places left to live by their retirement age.
But that’s not so important compared to frustrating the economic ambitions of that rival nation-state, right?
By: David Atkins, Political Animal, The Washington Monthly, November 29, 2014
“The Deck Is Stacked In Favor Of The Police”: Given Every Benefit Of The Doubt, Which Rarely Happens In Other Criminal Cases
Once more a police officer is not being held legally accountable for a killing. There are so many instances of this. Earlier this year, two Fullerton, Calif., police officers were found not guilty of all charges in the killing of Kelly Thomas, a homeless man who had been diagnosed with schizophrenia. Medical records show that bones in his face were broken and he choked on his own blood; the compression of his thorax by the police made it impossible for Thomas to breath and deprived his brain of oxygen.
In the wake of the grand jury’s choice to not indict the Ferguson, Mo., police officer Darren Wilson, the question must be asked as to why so often juries, and grand juries, rule in favor of the police, even when there is strong evidence of police misconduct. With a videotape of a savage beating, a California jury acquitted the four officers who beat Rodney King and a subsequent federal court jury acquitted two of them.
It is only when police officers are being investigated that the criminal justice system seems to operate most like it is supposed to in protecting the rights of suspects. Grand juries are meant to be a check on prosecutors. But in reality grand juries usually do whatever prosecutors want and generally are presented only evidence supporting an indictment. In Ferguson, however, the prosecutor presented all of the evidence and deferred entirely to the grand jury.
There is supposed to be a presumption of a defendant’s innocence in every criminal investigation. All too often, though, prosecutors and judges and even juries act with the assumption of a defendant’s guilt. By contrast, when the defendant is a police officer, there is a strong presumption of innocence. There is great deference to the split-second decisions of the officer in the field, even when the force seems clearly excessive. The officer is given every benefit of the doubt, which rarely happens in other criminal cases.
The problem is that the law gives too much deference to police conduct and does not do nearly enough to hold the police accountable. This also is true when police are sued by victims for money damages in civil court. A number of legal rules make it very difficult for victims of police abuse to successfully sue.
The events in Ferguson have focused national attention on the problem of excessive police force. It must be a catalyst for a careful analysis of why the legal system fails to achieve justice for victims of the police and how to correct it.
By: Erwin Chemerinsky, Dean and The Raymond Pryke Professor of First Amendment law at The University of California, Irvine, School of Law; Room for Debate, The New York Times, November 26, 2014
“A Collective Failure”: The Crisis Of Leadership And Confidence In Ferguson, Mo.
Michael Brown was shot and killed by Ferguson, Mo., police officer Darren Wilson on Aug. 9. The unarmed 18-year-old’s body laid in the street for more than four hours. Ever since that fateful Saturday afternoon, there have been protests about the way Brown was treated and the way African Americans in general have been treated in the St. Louis suburb. The most dramatic and revealing were those that erupted the evening of Aug. 13. Demonstrators were met with a militarized police force that lobbed tear gas at them, shot rubber bullets at them and arrested journalists. But in the chaotic nighttime scene three people were missing: Gov. Jay Nixon (D), Ferguson Mayor James Knowles III and Ferguson Police Chief Thomas Jackson.
As their city and state and their police forces ran roughshod over the First Amendment rights of demonstrators with the entire world watching, those three public officials were nowhere to be seen. Their inexcusable absence that night, the lack of leadership it exposed and the subsequent bumbling efforts to show control might explain why there was so much hysteria leading up to tonight’s announcement that Wilson will not be charged in Brown’s death.
My view of their actions is certainly colored by my 16 years in New York City. Whenever anything big happened or was about to happen in the Big Apple or the Empire State (from snow storm to terrorist attack), you were guaranteed to see the mayor, the governor, the police commissioner and every relevant city and state commissioner squeezed behind a podium to give anxious New Yorkers an update. Both in word and presence, those public officials at least gave the impression that someone was in charge. Someone was accountable. Someone was speaking for them. Nixon, Knowles and Jackson (especially Jackson) have consistently failed that basic test of leadership. The leaks from other local law enforcement agencies throughout the various investigations served to exacerbate tensions.
In the three months since Brown’s killing we have come to learn that their collective failures are just the tip of the iceberg of problems in Ferguson. My colleague Radley Balko reported extensively on how municipalities in St. Louis County, Mo., profit from poverty. “If you were tasked with designing a regional system of government guaranteed to produce racial conflict, anger, and resentment,” he wrote, “you’d be hard pressed to do better than St. Louis County.” The inherent mistrust of police, the grand jury process and the motives of elected and law enforcement officials that we have seen from blacks in Ferguson can be traced back to the Balko’s observation.
The Post’s Wesley Lowery is back on the ground in Ferguson just as he was on that tumultuous night in August. When I asked him whether Nixon, Knowles and Jackson had a local presence now that wasn’t being captured at the national level, his reply came quickly. “Not at all. There is no leadership from electeds on the ground. None,” he said, explaining his assessment came from “dozens of interviews” and his personal observations. “This is a disenfranchised populace – they don’t vote for their elected leadership, and don’t feel represented by them, so why would they turn to them for leadership now?”
After his 20-minute presentation of the grand jury decision and the evidence supporting it, St. Louis County prosecutor Robert McCollouch acknowledged that the killing of Brown opened old wounds and urged protesters to “continue the demonstrations, continue the discussions” to ensure this doesn’t happen again — soothing words from a public official that are of no comfort to a community that was hurting long before Wilson shot and killed Brown on a hot summer day.
By: Jonathan Capehart, Post-Partisan, The Washington Post, November 24, 2014
“And Has The Legal Authority”: Poll; Americans Broadly Back Obama’s Immigration Executive Action
Americans are very open to President Barack Obama’s newly announced executive action to shield millions of undocumented immigrants from deportation, according to a Hart Research Associates survey released Friday.
The poll, which was conducted on behalf of the liberal 501(c)(4) “dark money” group Americans United for Change, described the president’s policy as follows:
The action would direct immigration enforcement officials to focus on threats to national security and public safety, and not on deporting otherwise law-abiding immigrants. Immigrants who are parents of children who are legal US residents could qualify to stay and work temporarily in the United States, without being deported, if they have lived in the United States for at least five years, pay taxes, and pass a criminal background check.
After hearing that description, voters overwhelmingly backed President Obama’s move: 67 percent viewed it favorably, while just 28 percent viewed it unfavorably. The support was fairly bipartisan, with 91 percent of Democrats, 67 percent of Independents, and 41 percent of Republicans viewing the executive action favorably. Among Tea Party Republicans, however, 64 percent opposed the policy while just 30 percent viewed it favorably.
The results underscore the importance of President Obama’s sales job with regard to his executive action. Previous polls have found that voters abstractly disapprove of the president circumventing Congress to deal with immigration. A USA Today poll released Monday, asking “Should President Obama take executive action this year to deal with illegal immigration or should he wait until January for the new Republican Congress to pass legislation on this issue,” found that 42 percent wanted the president to act now, while 46 percent preferred that he wait. Similarly, an NBC News/Wall Street Journal poll released Wednesday found that 48 percent disapproved of President Obama taking executive action while 38 percent approved, without being told any of the details of the president’s plan.
But, as Hart Research found, voters strongly support the specifics of President Obama’s executive action. They favor allowing the parents of children living legally in the United States to stay in the country by a 40 percent margin, expanding the Deferred Action for Childhood Arrivals (DACA) program by 36 percent, providing temporary work permits to qualifying immigrants by 55 percent, and shifting more security resources to the U.S.-Mexico border by 63 percent.
Democrats already seem to be winning one important aspect of the messaging fight; the poll found that — despite outspoken Republican outrage — voters agree, 51 to 41 percent, that President Obama has the legal authority to change the nation’s immigration enforcement policies.
The Hart Research Associates poll surveyed 800 likely 2016 voters from November 19 to 20, 2014, and has a +/- 3.5 percent margin of error.
By: Henry Decker, The National Memo, November 21, 2014
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